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LIBRARY 


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AMERICAN 

CORRESPONDENCE  SCHOOL 

OF  LAW 


THE  LAW  OF  COMMON  CARRIERS 


BY 

F.  A.  WILLIAMS 

III 

Associate  Justice,  Supreme  Court  of  Texas 


AMERICAN    CORRESPONDENCE   SCHOOL  OF   LAW 
CHICAGO,   U.   S.   A. 


ISOS 


Copyright  1908 

BY 

American    Correspondence   School  of  Law 
Chicago 


u. 


Ass.  Justice  Stipreme  Courts  Texas 


Biographical  Sketch 

OF 

HON.  F.  A.  WILLIAMS. 

Hon.  F.  A.  Williams,  Associate  Justice  of  the  Supreme  Court 
of  Texas,  was  born  in  Macon,  Miss.,  Oct.  6th,  1851.  He  was 
educated  in  the  schools  of  his  native  city,  and  at  the  age  of 
eighteen  began  the  study  of  law.  He  emigrated  to  Texas  in 
18T1,  pursuing  the  study  of  law  in  the  office  of  D.  A.  Nunn, 
one  of  the  most  prominent  lawyers  of  Texas.  In  1872,  at  the 
age  of  twenty,  he  was  admitted  to  the  bar  and  immediately 
formed  a  partnership  with  his  preceptor,  Mr.  Nunn — which 
well-known  firm  continued  in  active  practice  until  1884,  when 
he  was  appointed  and  afterwards  elected  to  the  office  of  District 
Judge. 

Judge  Williams  held  this  position  until  1892,  when,  upon  the 
creation  of  the  Court  of  Civil  Appeals,  he  was  appointed  and 
served  as  Associate  Justice  of  that  Court  for  the  First  or  Gal- 
veston District.  He  continued  in  this  office  until  May,  1899, 
when  he  was  called  from  this  place  of  honor  and  made  a  Justice 
of  the  Supreme  Court  of  Texas,  which  position  he  now  fills. 

For  almost  twenty-five  continuous  years  Justice  Williams  has 
graced  the  bench  and  has  rendered  many  of  the  opinions  and 
decisions  which  go  to  make  up  the  laws  of  Texas.  His  wide 
knowledge  and  extensive  experience  makes  his  lecture  on  "Com- 
iiu;n  Carriers"  (one  of  the  most  important  branches  of  the  law) 
e(iuival(  lit    to  almost  an   authority. 


The  Law  of  Common  Carriers. 


The  common  carrier  is  classed  by  writers  as  a  bailee, 
and  when  entrusted  with  the  custody  of  property  he  is  a 
bailee,  but  of  a  kind  differing  widely  from  priviate  car- 
riers and  other  ordinary  bailees.  So  he  may  be  subjected 
to  liabilities  to  those  who  seek  his  services  although  he 
has  not  become  a  bailee.  These  differences  result  from 
the  character  of  the  business  which  he  voluntarily  under- 
takes. He  holds  himself  out  to  the  public  as  ready  in- 
discriminately to  receive  and  transport  persons,  or  prop- 
erty, or  both,  and  is  therefore  regarded  as  a  sort  of  pub- 
lic servant  upon  whom  the  law,  as  a  consequence,  im- 
poses many  duties  and  restrictions. 

The  obligations  of  the  ordinary  bailee  result  from  his 
voluntary  assumption  of  the  relation,  the  law  leaving  him 
free  to  enter  into  it  or  not  as  he  may  choose.  The  vol- 
untary action  of  a  common  carrier  is  taken  by  engaging 
in  the  business,  and  when  he  has  done  so,  the  law  itself, 
while  it  does  not  entirely  take  away  his  power  of  contract- 
ing, imposes  upon  him  duties  and  liabilities  which  are  in- 
dependent of,  and  sometimes  in  opposition  to,  his  agree- 
ments. 

When  proper  application  is  made  for  the  services  ten- 
dered the  law  holds  him  to  the  public  duty  undertaken 
and  requires  him  to  perform  it.  If  he  refuse  he  is  sub- 
ject to  an  action  for  damages,  or  to  the  processes  of  the 
law  to  compel  him.  If  he  accept,  'he  may  enter  into  such 
agreements  with  the  shipper  as  are  regarded  as  consistent 
with  his  duties  and,  therefore,  reasonable,  but  is  not  al- 
lowed to  make  others  inconsistent  with  those  duties  and, 
therefore,  contrary  to  jniblic  policy.  He  is  not  permit- 
ted to  charge  unreasonable  prices  for  his  services,  nor 
to  discriminate  unjustly  between  shippers,  nor  to  fix  a 


6  American   Correspondence  School  of  Law 

standard  of  the  care  to  be  devoted  to  the  safe  keeping, 
carriage  and  delivery  of  goods  and  persons  inferior  to 
that  which  the  law  itself  fixes,  nor  to  contract  for  many 
other  things  detrimental  to  the  rights  of  the  public. 

Besides  the  principles  of  the  common  law  upon  the  sub- 
ject, many  federal  and  state  statutes  will  be  found  further 
regulating  the  businesses  and  enforcing  the  duties  of  some 
classes  of  common  carriers,  which  have  been  demanded, 
in  the  interest  of  the  public,  by  the  importance  of  trans- 
portation and  the  increasing  magnitude  and  power  of 
transportation  companies. 

A  full  understanding  of  the  law  of  common  carriers, 
therefore,  is  to  be  had,  not  from  the  law  of  bailments  and 
the  principles  of  contracts  only,  but  from  these  in  con- 
nection with  the  rules  peculiar  to  the  subject  established 
by  the  common  law  and  by  statute.  The  federal  statutes 
are  those  enacted  in  the  exercise  of  the  power  to  regu- 
late that  kind  of  transportation  wMch  constitutes  a  part 
of  interstate  and  foreign  commerce.  Of  the  state  stat- 
utes, some  are  held  to  apply,  as  police  regulations,  to 
carriers  engaged  in  the  kind  of  commerce  just  mentioned, 
as  not  conflicting  with  the  exclusive  power  of  Congress 
to  regulate  that  subject.  Others  are  restricted  in  their 
operation  to  transportation  entirely  within  the  state.  A 
discussion  of  this  legislation  is  beyond  the  scope  of  this 
paper,  the  references  to  it  being  intended  merely  to  in- 
dicate the  sources  of  the  law  upon  this  sul)ject.  The  pur- 
pose of  this  paper  is  to  give  elemeiitniy  doctrines  of  the 
law  such  as  are  needed  by  the  beginner,  with  illustra- 
tions to  make  them  better  understood. 

CARRIERS   OF  GOODS. 

The  slntns  of  a  common  carrier  is  fixed,  in  law,  by  his 
holding  liiniself  out  to  tlie  world  as  sucli  a  carrier  of 
^oods.  P('i-s()i)s  and  ('(»j-))()rnti()iis  wliose  action  signifies 
to  tli(»  world  lli;il  IIic.n'  jicc  r(';i(l>-  lo  icccive  and  transport 
tlic  piopciiy  of  pcdplc  ncncr.'illy  tor  i'<'\vard  arc  coininon 


The  Law  oj    Co?nmon   Carriers  7 

carriers  of  goods.  Owners  of  railroads,  steamboats,  canal 
boatij,  ferries,  and  the  like,  who  operate  under  franchises 
from  the  sovereign,  generally  become  common  carriers  by 
force  of  their  charters  or  of  the  laws  under  which  their 
franchises  are  granted,  when  their  instrumentalities  have 
been  put  in  readiness  for  the  business.  Such  instrumen- 
talities, however,  may  be  owned  and  used  in  businesses 
purely  private,  and,  if  their  owners  are  not  holders  of 
franchises  obligating  them  to  carry  for  the  j^ublic  and  if 
they  do  not  hold  themselves  out  as  doing  so,  they  are  not 
common  carriers  merely  because  of  such  ownership  and 
use.  Owners  of  saw  mills,  for  instance,  may  use  railroads 
as  incidents  of  their  milling  businesses  without  undertak- 
ing to  haul  for  the  public,  and  other  similar  illustrations 
might  be  given.  It  is  not  the  character  of  the  instrumen- 
tality, therefore,  but  that  of  the  business  which  the  owner 
assumes  or  is  required  by  law  to  do  that  controls  in  de- 
termining whether  or  not  he  is  a  coimmon  carrier.  But 
the  scope  of  the  business,  i.  e.,  the  character  and  kind  of 
goods  which  a  common  carrier  undertakes  to  transport 
and  which  he  is  therefore  bound  to  transport,  may,  to 
a  great  extent,  be  indicated  by  the  means  he  employs. 
Transportation  by  railroad  would  necessarily  include 
many  things  which  a  wagoner  or  a  stage  coachman 
would  never  undertake  to  carry ;  but,  on  the  other  hand, 
railroad  companies  and  express  companies  both  use  rail- 
road cars  in  which  to  carry  goods,  and  yet  the  former 
may  be  required  to  carry  many  things  which  the  latter 
may  lawfully  refuse  to  carry.  This  is  because  of  the  differ- 
ences between  the  businesses  which  they  hold  themselves 
out  as  doing. 

To  the  character  of  the  common  carrier  the  element  of 
reward  is  essential.  He  must  hold  himself  out  as  engag- 
ing to  render  the  service  for  hire.  It  is  hardly  to  be  sup- 
posed that  any  one  would  undertake  to  carr^^  gratuitously 
for  all  the  pul)lic,  Init  one  who  is  generally  a  com- 
mon carrier  sometimes  undertakes  a  particular  transpor- 


8  American   Correspondence  School  of  Law 

tation  without  reward.  It  is  often  laid  down  in  the  author- 
ities that,  notwithstanding  his  general  public  charac- 
ter, he  is  not  in  the  particular  instance  a  common  caiTier. 
This  proposition  is  not  admitted  everywhere. 

The  relation  of  a  sliipper  and  carrier  is  established  by 
the  delivery  and  acceptance  of  goods  for  shipment..  To 
make  it  the  duty  of  the  carrier  to  accept  the  goods,  the 
delivery,  or  tender,  must  be  made  at  such  a  time  and  place 
and  in  such  manner  as,  by  his  reasonable  regulations,  or 
course  of  business,  he  has  required.  He  may,  however, 
bind  himself  by  accepting  goods  otherwise  offered. 

When  goods  are  properly  offered  for  shipment  it  is 
the  carrier ''s  duty  to  receive  and  to  transport  them  with- 
out unjust  discrimination  between  shippers,  and  his  re- 
fusal to  do  so  subjects  him  to  an  action  for  damages, 
or,  under  proper  circumstances,  to  legal  proceedings  to 
compel  the  performance  of  the  duty.  Statutes  often  give 
penalties  for  refusals  to  perform  this  or  other  duties  pre- 
scribed by  law.  It  must  not  be  understood,  however,  that 
every  carrier  is  bound  to  receive  every  kind  of  goods  that 
may  be  offered.  Some  property  may  not  be  fit  for  trans- 
portation at  all,  or  goods,  unobjectionable  in  themselves, 
may  be  of  a  kind  that  are  not  within  the  scope  of  the 
business  of  a  particular  carrier  as  indicated  by  his  hokl- 
ing  out.  It  is  a  general  rule  that  the  carrier  is  only  bound 
to  receive  such  goods  as  he  undertakes  to  transport.  In 
this  respect  the  undertakings  of  some  carriers  are  much 
broader  tlian  those  of  others.  Railroad  companies,  for 
exami)le,  cari-y  almost  every  kind  of  property  that  is  fit 
for  transportation,  and  their  duties  in  this  regard  may 
Ixi  determined  either  from  their  course  of  business,  or 
from  their  charters  and  the  laws  under  which  they  exist. 
And  this  is  true  of  other  carriers  that  might  be  named. 

Carriers  may  I'ofnse  to  acco])t  goods  tendered  in  a  con- 
dition imfit  foi-  sliipmciil,  as  wIkmi  they  arc  not  ]iroi)crly 
])afk('d,  or  \wv  too  datigcroiis  oi-  offcTisive.  (Conditions 
airainst  wiii'-ii   the  roi-csii;iit   of  a  can'ici-  could   not   have 


The  Law  of  Common   Carriers  9 

provided  may  alsO'  arise  under  wliicli  lie  is  excused  from 
accepting  property  offered.  An  unusual  and  unforeseen 
rush  of  business  may  have  caused  such  an  accumulation 
of  matter  as  to  have  put  it  temporarily  beyond  his  power 
properly  to  care  for  further  consignments ;  and  there  may 
be  dangers,  as  from  mobs,  or  other  sources,  which 
threaten  the  destruction  of  goods.  The  carrier  may  show 
such  things  in  justification  of  a  refusal  to  accept,  when 
they  are  such  that  reasonably  prudent  carriers  would  not, 
or  could  not,  have  received  and  carried  them  under  like 
conditions. 

The  carrier  is  not  bound  to  accept  goods  in  such  way 
as  to  obligate  himself  to  carry  them  beyond  tiis  own  line 
of  transportation ;  but  when  his  connections  are  'such  that 
he  may  deliver  to  a  connecting  carrier  without  leaving 
his  own  line,  and  his  practice  is  to  do  so,  it  is  his  duty 
to  accej^t  for  such  delivery.  He  is  not  bound  to  assume 
responsibility  for  the  conduct  of  the  connecting  carrier, 
but  he  may  agree  to  transport  to  and  deliver  at  destina- 
tion, though  this  may  require  the  emplojonent  of  other 
carriers,  in  which  case  his  agreement  makes  him  respon- 
sible throughout  the  transit.  And  if  one  caiTier  holds 
himself  out  as  carr^dng  over  the  lines  of  others,  he  may 
be  required  to  do  so,  the  other  lines  employed  being  re- 
garded as  part  of  his  own.  But,  by  merely  receiving 
goods  destined  to  a  point  beyond  his  line,  the  carrier  does 
not  become  responsible  for  the  conduct  of  other  carriers 
occurring  after  the  property  has  left  his  hands.  He  may 
contract  for  or  ag-ainst  such  liabilities. 

As  to  liability  of  the  common  carrier  for  non-delivery 
or  loss  of,  or  damage  to  property  in  his  hands  for  trans- 
portation, the  common  law  exempts  him  from  liability  to 
the  owner  for  those  losses  only  that  are  due  to  the  act  of 
God,  the  act  of  the  public  enemy,  the  act  'Of  the  public 
authority,  the  act  or  fault  'of  the  owner  or  shipper,  or 
the  inherent  nature  of  the  goods.  The  statement  in  the 
books  that  the  carrier  is  an  insurer  of  the  goods  means 


10  American   Correspondence  School  of  Law 

no  more  tliaii  this.  For  the  non-delivery,  loss,  or  destruc- 
tion cf,  or  damage  to,  the  property  itself,  resulting  from 
other  causes  than  those  stated,  the  carrier  is  liable. 

One  definition  of  the  phrase,  "Act  of  God,"  is,  "Any 
accident  due  to  natural  causes  directly  and  exclusively, 
without  human  intervention;  such  as  could  not  liave  been 
prevented  by  any  amount  of  foresight  and  pains  and  care 
reasonably  to  have  been  expected."  Other  phrases,  such 
as,  "vis  major,"  and  "inevitable  or  unavoidable  acci- 
dent, ' '  have  been  employed  as  legal  equivalents  of  ' '  Act  of 
God."  When  used  to  express  this  limitation  upon  the 
liability  of  common  carriers  they  must  be  understood  as 
meaning  only  those  happenings  'Which  result  immediately 
from  natural  causes,  without  the  intervention  of  man,  and 
wliicli  could  not  have  been  prevented  by  the  exercise  of 
i:>i'udence.  In  some  connections  these  phrases  include  other 
things  which  would  furnish  no  excuse  to  the  carrier, 
as  when  the  superior  force  is  that  of  human  beings,  not 
the  public  enemy,  or  the  inevitable  'or  unavoidable  acci- 
dent is  one  resulting,  not  wholly  from  the  forces  of  na- 
ture, but  w^iolly  or  j^artly  from  human  agency.  The  ex- 
amples given  in  the  Cyclopedia  of  causes  which  are  and 
of  others  which  are  not  acts  of  God  fairly  illustrate  this 
subject.  It  is  to  be  understod,  however,  that  the  causes 
mentioned  must  be  such  that  the  carrier  in  organizing 
and  conducting  his  business,  could  not  reasonably  have 
foreseen  and  i)rovided  against  them.  Not  every  flood,  or 
frost,  or  snow,  or  the  like  occurrence,  is  of  the  character 
that  relieves.  Tlie  carrier  must  foresee  that  some  such 
things  will  occur,  and  must  provide  against  such  as  may, 
with  proper  skill  and  prudence  be  foreseen  and  avoided. 
It  is  ()iil>  lliosc  natural  causes  the  effects  of  which  can- 
not thus  l)('  avoided  that  constitute  acts  of  God.  It  must 
be  n'Tiicnibcicd  rurilicr  that  the  carrier  is  not  res})onsible 
for  (Ictcr-iofjitlon  lo  which  goods,  because  of  their  quali- 
ties, are  suhject  in  trans))ortali()n  ;  and  that  the  fact  that 
conditions  of  the  weather  may  hasten  such  deterioration, 


The  Law  of  Common   Carriers  11 

merely,  without  tlie  carrier's  fault,  does  not  make  him 
liable. 

The  carrier  will  not  be  protected  from  liability  for  a 
loss  if  his  own  negligence  proximately  contributed  to  it. 
Such  negligence  may  consist  in  tlie  exposure  of  the  goods 
to  the  natural  forces  when  there  was  opportunity  to  fore- 
see and  avoid  them,  or  in  the  failure  to'  adopt  prudent 
measures  to  save  them,  or  to  diminish  the  loss,  when  by 
reasonable  diligence  that  could  have  been  done.  The  act 
of  God  must  liave  been  the  sole  i^roximate  cause  of  the 
loss.  There  may,  however,  have  been  negligence  of  the 
carrier  in  some  particular  which  did  not,  in  the  legal 
sense,  proximately  contribute  to  the  loss,  in  which  ease 
the  natural  cause  is  regarded  as  the  only  one,  and  the  car- 
rier is  exempted.  There  may  have  been  negligent  delay  in 
forwarding  the  goods,  in  consequence  whereof  they  were 
brought  within  the  Influence  of  a  storm,  or  flood,  or  the 
like,  constituting  an  act  of  God,  which  they  would  have 
escaped  had  proper  dispatch  been  used.  Courts  diifer 
about  such  cases,  some  holding  that  the  negligent  delay 
was  a  proximate  contributing  cause  of  the  loss  because  it 
would  not  have  occurred  but  for  the  delay,  and  others 
holding  differently,  for  the  reason  that  damages  reeov- 
erable  for  delay  are  such  only  as  may  be  foreseen  as  likely 
to  result  therefrom  and  do  not  include  those  which  re- 
sult from  the  happening  of  convulsions  of  nature  which 
ordinarily  are  not  to  be  calculated  upon  or  anticipated. 
The  latter  is  believed  to  be  the  correct  view. 

''The  public  enemy,"  are  those  at  open  war  with  the 
carrier's  own  country  whether  war  has  been  formally 
declared  or  not.  It  includes  hostile  Indian  tribes,  when 
so  engaged,  pirates  and  privateers.  It  does  not  include 
thieves,  robbers,  mobs,  rioters,  or  strikers.  Nor  does  it 
include  mere  insurgents;  but  an  insurrection  may  grow 
into  a  civil  war,  in  which  the  parties  become  belligerents, 
in  which  case  those  on  the  side  opposed  to  that  of  the 
carrier  would  be  considered  as  the  public  enemy. 


12  American   Correspondence  School  or  Law 

To  avail  himself  of  this  protection  the  carrier  must 
have  been  guilty  of  no  negligence  proximately  contrib- 
uting to  the  loss. 

The  carrier  must  submit  to  the  paramount  authority 
of  the  place  where  he  conducts  his  business  and  therefore 
another  excuse  for  not  delivering  arises  when  the  prop- 
erty is  taken  from  him  or  destroyed  by  such  authority. 
Goods  may  sometimes  be  lawfully  taken  from  him  in  the 
enforcement  of  the  police  regulations  of  the  government, 
and  he  is  protected  if  the  power  is  lawfully  exerted.  But, 
as  the  carrier  is  not  relieved  by  the  acts  of  mere  tress- 
passers, a  seizure  by  an  officer  without  any  lawful  author- 
ity will  not  protect  him. 

So  he  may,  with  the  same  qualification,  lawfully  yield 
possession  of  property  to  an  officer  holding  jDrocess 
against  the  owner,  authorizing  the  seizure.  And  if  the 
person  in  whose  behalf  the  property  is  seized  be  the  real 
owner,  this,  in  itself,  constitutes  a  defense  against  the 
shipper ;  but  the  carrier  must  establish  the  fact  of  owner- 
ship unless  the  seizure  was  made  under  process  fair  and 
legal  on  its  face  authorizing  the  seizure. 

Excuses  arising  from  the  fault  of  the  owner  or  shipper 
and  from  the  exercise  of  the  right  of  stoppage  in  transitu 
may  be  passed  without  further  discussion. 

The  liability  thus  far  considered  for  the  loss  or  destruc- 
tion of  or  damage  to  the  property  itself  from  any  cause, 
except  those  mentioned,  is  absolute  and  does  not  depend 
uj)on  negligence  in  the  transportation  and  delivery,  while 
neglii^ence  contributing  to  the  loss  may  cause  liability 
though  some  of  the  excepted  causes  also  operate.  But 
tliero  are  some  losses  to  the  shipper  for  which  the  liabil- 
ity dT  the  cai-i'ici'  (le])ends  upon  negligence.  The  carrier 
(Iocs  not  nccessai'ily  undci'take  and  the  law  does  not  re- 
(juiic  lii?n  to  carry  and  deliver  within  any  g'iven  time. 
IFc  nia\,  by  contract,  fix  a  time,  and,  when  he  does,  he 
is  }>ound  as  any  oilici-  ] tarty  to  a  contract  stipulating  for 
tlif  ))f)Toniianc('  of  service  within  a  fixed  time  would  be 


The  Law  of  Common   Carriers  13 

bound.  Without  such  an  agreement,  the  duty  is  to  exer- 
cise 1  easonable  diligence  to  carry  within  the  proper  time 
and  the  failure  to  exercise  it  is  negligence.  The  character 
of  this  duty  and  of  the  cor-relative  right  of  the  ship- 
per, therefore,  is  such  that  only  negligence  constitutes  a 
breach  and  is  essential  to  a  cause  of  action  for  damages 
for  delay.  Damages  from  delay  may  result  variously. 
Though  i^roperty  be  delivered  at  destination  in  perfect 
condition,  -markets  may  have  declined  and  the  property 
be  less  valuable  than  if  earlier  delivered.  Liability  for 
such  damage  is  not  visited  by  law  absolutely  on  the  car- 
rier, since  it  does  not  result  from  loss  of  or  injury  to  the 
property  itself  or  from  failure  to  deliver  it.  The  carrier 
is  liable  only  in  case  he  has  failed  in  his  duty  of  diligence. 

But  how  is  it  if  the  condition  of  the  property  itself  de- 
terioi-ate  during  the  delay  %  If  there  be  no  negligence  and 
the  deterioration  be  due  to  the  inherent  nature  of  the 
l^roperty,  the  loss  falls  on  the  owner,  because  the  car- 
rier, if  he  finally  deliver,  does  not  violate  his  duty  in  re- 
spect of  the  time  of  delivery.  But  if  the  delay  result 
from  want  of  proper  diligence  there  is  liability  for  any  in- 
creased deterioration  due  to  such  negligence. 

The  difficulties  and  obstacles  carriers  encounter  in 
transportation  are  greater  at  some  times  than  at  others, 
and,  with  perfect  diligence,  one  trip  may  take  more  time 
than  another.  The  ciuestion  as  to  the  carrier's  negli- 
gence must  therefore  be  determined  by  considering  all 
the  circumstances  which  properly  affected  his  action 
in  the  particular  case,  and  hence  it  is  that,  in  deter- 
mining liability  for  delay,  obstacles  such  as  the  acts  of 
strikers,  mobs,  and  others,  which  are  not  the  acts  of  G-od, 
or  of  the  public  enemy,  are  allowed  to  excuse  delay  where 
they  would  not  exempt  from  liability  for  direct  injury  to, 
or  failure  to  deliver,  the  property. 

The  rule  as  to  the  diligence  required  of  the  carrier  in 
the  transportation  is  that  it  mnst  be  done  with  all  con- 
venient dispatch  and  within  reasonable  time.     He  must 


14  American   Correspondence  School  of  Law 

use  such  care  and  diligence  as  carriers  of  ordinary  pru- 
dence in  the  same  line  of  business  would  exercise  under 
like  circumstances.  The  delay  may  be  so  unusual  as  to 
show  a  prima  facie  case  o'f  negligence  and  throw  upon  the 
carrier  the  burden  of  showing  tiliat  it  could  not  have  been 
avoided  by  care  of  the  kind  stated. 

The  diligence  to  be  used  by  the  carrier  includes  the  pro- 
viding himself  with  all  instrumentalities  and  facilities 
necessarily  or  reasonably  required  for  the  proper  carry- 
ing on  of  the  line  of  business  in  which  he  engages  and  the 
handling  of  the  various  kinds  of  freight  which  the  nature 
of  his  business  requires  him  to  carry.  He  must  forward 
the  goods  of  all  impartially,  giving  preference,  however, 
to  those,  like  fruits,  vegetables,  etc.,  which  are  likely  to 
perisli  by  delay,  providing  for  each  consignment  the  kind 
of  transportation  demanded  by  its  character. 

In  the  railroad  business  much  of  the  freight  is  carried 
in  carload  lots  over  lines  of  more  than  one  road,  and  rail- 
road companies  are  generally  required  to  receive  cars 
coming  over  other  lines  with  which  they  have  suitable 
connections  and  to  carry  them  on  to  destination,  or  so  far 
as  their  lines  may  go. 

It  is  often  the  duty  of  railroad  companies,  arising  from 
the  course  of  their  business  or  from  statutes  so  requir- 
i.ng,  to  fuiTiish  to  shippers,  upon  prox>er  notice  and  de- 
mand, cars  to  be  loaded  at  points  designated  for  the  pur- 
pose. To  perform  this  duty  they  are  required  to  exer- 
cise ordinary  care  and  diligence,  in  the  absence  of  con- 
tract or  statute  fixing  a  time. 

The  liability  as  an  insurer  is  th'at  fixed  by  law  in  the 
absence  of  contract  between  tire  carrier  and  shipper.  By 
tlie  common  law  the  carrier  is  allowed  by  contract  to  re- 
lieve himself  of  tlic  lialHlily  of  an  insurer,  so  called,  and 
to  liniil  Ills  ;u'('onnl;il)ilI1y  to  sncli  losses  as  occur  through 
the  negligence  of  liiniself  or  liis  employes.  Some  author- 
ities bold  tlinl  he  may  exempt  himself  from  liability  for 


The  Law  of  Common   Carriers  15 

the  negligence  of  liis  agents  and  servants,  and  from  all 
liability  except  that  whicili  results  from  gross  negligence, 
but  this  is  believed  not  to  be  sound  nor  supported  by  the 
weight  of  authority.  The  law  determines  the  standard 
of  care  and  diligence  to  be  used  and  will  not  permit  com- 
mon carriers  by  contract  to  free  themselves  from  the  duty 
to  it. 

Under  the  common  law  a  carrier  may  agree  with  the 
shii^per  upon  a  valuation  of  goods  beyond  which  he  is  not 
to  be  liable  as  for  mere  value.  He  may  also  provide  for 
notice  of  claims  for  losses  to  be  given  within  a  specified 
reasonable  time  after  their  occurrence,  in  order  that  he 
may  have  fair  opportunity  to  investigate.  Some  stipula- 
tions of  this  kind  have  justly  been  held  void  by  the 
courts,  as  allowing  too  short  a  time,  or  as  being  too  in- 
definite, or  as  imposing  unreasonable  restrictions  upon 
the  claimants.  And  it  may  be  stated  generally  that  courts 
will  not  enforce  stipulations  in  such  contracts  which  ap- 
pear to  be  unreasonable  impositions  upon  shippers,  for 
the  reason  that  the  position  of  the  carrier  gives  him  the 
power,  in  a  large  measure,  to  dictate  his  terms.  Statutes 
have  been  adopted  in  some  states  restricting  the  right 
of  the  carrier  to  limit  his  liability,  some  of  them  taking 
away  his  power  to  change  it  from  that  fixed  by  the 
common  law.  Mere  published  or  posted  conditions  not 
agreed  to  by  the  shipper  will  not  bind  him  as  limitations 
upon  the  carrier's  liability.  And  sometimes  instruments 
properly  signed  by  the  shipper,  containing  stipulations 
which  might  be  legal  if  fairly  agreed  to,  have  been  held 
not  binding  when  provisions  differing  from  oral  agree- 
ments previously  made  have  been  inserted  without  the 
knowledge  of  the  shipper  and  under  circmnstances  pre- 
venting him  from  examining  and  understanding  them. 

All  such  agreements  must  be  plainly  expressed  and,  if 
written  or  printed,  must  be  so  that  they  are  easily  read 
and  understood. .  They  are  strictly  construed  against  the 
carrier. 


16  American   Correspondence  School  of  Law 

The  rules  wliicli  govern  the  carrier  in  making  a  de- 
livery effectual  to  relieve  it  of  further  liability,  as  such, 
the  kinds  of  deliveries  the  different  carriers  must  make 
under  their  various  undertakings,  as  well  as  the  things 
that  will  excuse  non-delivery  are  so  fully  stated  in  the 
Cyclopedia  that  further  treatment  in  this  paper  would 
be  largely  repetition.  Further  study  of  the  subject  will 
reveal  to  the  student  conflicts  of  decision  upon  some  of 
the  questions  involved,  but  the  results  of  the  authorities 
are  believed  to  be  correctly  stated  in  the  text  book.  For 
example,  a  question  early  arose  as  to  the  time  at  which 
and  the  circumstances  under  which  the  liability  of  com- 
mon carrier  ended  and  that  of  warehouseman  was  substi- 
tuted, in  cases  where  personal  delivery  to  the  shipper 
was  rot  undertaken,  as  in  transportation  by  rail,  and  one 
view  expressed  was  that  the  change  occurs  as  soon  as  the 
goods  are  removed  from  the  cars  and  put  in  the  carrier's 
proper  place  of  delivery.  The  other  view,  which  is  un- 
derstood to  be  that  of  the  text  book  and  the  correct  one, 
is  that  the  liability  as  carrier  continues  until  the  con- 
signee has  had  reasonable  time  after  arrival  to  receive 
and  remove  the  goods. 

The  modified  liability  of  the  carrier  of  livestock  is  be- 
lieved to  fall  under  the  general  principle  that  excuses 
from  loss  attributable  to  vice  or  imperfection  in  the  thing 
carried.  Animals  may  necessarily  suffer  and  deteriorate 
in  undergoing  the  handling  inseparable  from  transporta- 
tion, and,  besides,  have  propensities  which  sometimes 
cause  them,  when  confined,  to  injure  themselves  or  each 
oilier.  For  damages  thus  occasioned  the  carrier,  unless 
guilty  of  negligence,  is  not  responsible;  otherwise  its  ac- 
counta])ility  is  that  which  arises  in  the  transportation  of 
otlier  property. 

Tbc  can-icr's  special  property  in  goods  held  for  car- 
riage,, and  tiie  rights  inci(l<'nt  thereto  and  his  lien  for  his 
(•barges  need  no  further  treatment  than  that  given  in 
{lie  ( "ycIojxMlin. 


The  Law  of  Co7nmon   Carriers  17 

CARRIERS  OF  PASSENGERS. 

A  person  or  corporation  becomes  a  common  carrier  of 
passengers  in  the  same  way  as  do  carriers  of  goods 
by  voluntarily  undertaking  to  carry  for  liire  any  and 
all  persons  who  may  apply  for  transportation.  But  his 
liability  differs  greatly  from  that  of  carriers  of  goods. 
In  the  transportation  of  goiods,  the  custody  and  care  of 
the  carrier  ordinarily  is  substituted  for  that  of  the  owner, 
the  goods  being  out  of  the  sight  and  control  of  the  lat- 
ter. Because  of  the  abuse  wliich  the  carrier  might,  by 
collusion  with  others,  or  by  other  means,  make  of  his 
power  over  the  goods  to  appropriate  or  injure  them,  or 
to  shield  himself  from  accountability  for  losses,  the  law 
has  deemed  it  unwise  to  permit  him  to  make  excuses  other 
than  those  discussed  which  are  supposed  to  be  of  such  a 
character  as  in  themselves  to  repel  any  imputation  of  mis- 
conduct. These  considerations  do  not  apply  in  the  car- 
riage of  human  beings,  for  the  twofold  reason  that  the 
carrier  can  have  no  such  custody  and  control  of  their  per- 
sons as  he  has  of  goods,  and  that  they  have,  to  a  great 
extent,  the  capacity  and  opportunity  of  caring  for  their 
own  safety.  The  carrier  is  therefore  not  held  to  insure  the 
safety  of  the  passenger,  but  his  duty  is  one  of  diligence. 
As  he  controls  his  vehicles,  premises  and  servants,  as  well 
as  the  transportation,  itself,  he  is  held  to  the  exercise  of 
great  care  and  diligence  to  protect  the  passengers  against 
the  dangers  of  transportation.  The  language  of  the 
authorities  defining  the  care  required  is  various,  but  the 
differing  expressions,  as  actually  applied,  are  believed  to 
require  the  highest  degree  of  care  and  skill  which  very 
pnident  and  competent  carriers  in  the  same  line  of  busi- 
ness would  exercise.  It  may  sometimes  appear,  in  review- 
ing an  accident  after  it  has  happened,  that  it  would  have 
been  averted  had  a  particular  precaution  been  taken,  but 
this  does  not  necessarily  make  the  carrier  liable,  as  some 
of  the  phrases  used  by  writers,  literally  applied,  would  in- 


18  American   Correspondence  School  of  Law 

dicate.  The  occurrence  must  have  been  such  that  by  the 
foresight,  care  and  skill  required,  applied  beforehand,  it 
would  have  been  prevented.  The  precautions  used  must 
always  be  proportioned  to  the  dangers  to  be  avoided, 
and  tlie  pains  to  be  taken  necessarily  vary  with  the  object 
to  which  they  are  directed,  but  the  legal  standard  by 
which  the  conduct  of  a  carrier  is  to  be  tested  is  believed, 
notwithstanding  seme  differences  of  oi)inion,  to  be  the 
same  in  all  situations. 

While  the  carrier  is  bound  generally  to  receive  and 
transport  without  discrimination  such  persons  as  apply, 
the  law  recognizes  causes  for  which  some  may  be  ex- 
cluded. The  rights  of  other  passengers  may  require  that 
he  reject  such  as,  by  reason  of  disorderly  or  indecent 
conduct,  would  be  obnoxious  to  them;  which  considera- 
tion may  require  the  exclusion  of  one  so  intoxicated  as  to 
be  unfit  to  be  carried.  Persions  suffering  from  dangerous 
contagious  diseases  may  also  be  rejected.  Nor  is  the  car- 
rier bound  to  receive  for  carriage  passengers  on  all  of  his 
vehicles.  He  usually  carries  passengers  and  freight  in 
different  conveyances,  A  railroad  company,  for  instance, 
may  forbid  the  carriage  of  passengers  on  its  freight 
trains,  construction  trains,  engines  and  the  like, 
not  used  to  carry  passengers.  It  may  also  have  local  and 
tlirough  passenger  trains,  the  latter  not  stopping  at  all 
way  stations  to  take  on  and  put  off  passengers.  It  is  not 
required  to  receive  upon  through  trains  ]>assengers  bound 
for  [)oints  at  which  such  trains  do  not  stop,  if  it  provide 
reasonable  service  to  those  points  hy  other  trains.  It  is 
however,  re(juired  to  stop  enough  of  its  trains  at  all  sta- 
tions regularly  establislied  for  receiving  and  discharging 
passengers  to  afford  reasona])le  accommodations  to  per- 
sons going  1o  Of  from  sucli  places. 

Tin  diit>-  of  ilic  caii'ier-  to  use  the  care  al)Ove  defined 
for  jiu'  safety  of  I  lie  passenger  Ix'gins  wlienevo?'  the  rc- 
lalior  of  carrici-  ;in(I  |)assengei'  is  establislied  and  lasts 
so  loriji-  as  ilial  i-elatIoti  coiilimies.     (Jeiiei'allv  il  is  not  dif- 


The  Law  of  Common   Carriers  19 

ficult  to  determine  in  cases  arising  whether  or  not  the 
relation  existed,  but  sometimes  it  is.  The  question  is 
important,  since  ui:)on  it  depends  the  existence  of  the  pe- 
culiar duty  of  the  carrier.  That  duty  certainly  arises,  as 
stated  in  the  Cyclopedia,  whenever  a  person  is  received 
for  carriage  in  any  vehicle  used  by  the  carrier  for  the 
carriage  of  passengers,  but  it  often  arises  before.  It  as 
certainly  arises  when  the  passenger  has  paid  his  fare  and 
has  been  accepted  as  such,  whether  he  is  in  the  convey- 
ance, or  entering  it,  or  awaiting  its  arrival,  and  it  may 
arise  even  earlier  than  that.  Carriers  usually  have  sta- 
tions, waiting  rooms,  and  their  appurtenant  approaches 
for  the  accommodation  of  persons  seeking  transporta- 
tion, and  it  is  believed,  though  there  is  conflict  of  author- 
ity uj)on  the  question,  that,  in  keej^ing  these  properly 
fitted  up  for  the  purpose,  the  carrier  owes  the  care  which 
has  been  defined  to  all  who  at  the  proper  time  enter  them 
with  the  bona  fide  intention  of  taking  passage  and  of 
doing  whatever  is  essential  to  that  end.  But  persons 
u^^on,  or  about,  such  premises,  or  even  upon  the  convey- 
ances, for  other  purposes  are  not  passengers.  The  own- 
ers of  such  premises  or  conveyances  may  owe  duties  to 
persons  thus  situated  but  they  are  not  the  duties  peculiar 
to  common  carriers.  It  is  said  that  there  must  be  an  ac- 
ceptance of  the  i^assenger  by  the  carrier,  and,  theoret- 
ically, this  may  be  true ;  but  it  is  not  often  of  importance 
in  the  deteiTuination  of  controversies.  When  one  has 
done  the  things  incumbent  on  him  to  entitle  him  to  be 
carried,  it  becomes  the  duty  of  the  carrier  to  accept  him 
and  the  acceptance  is  generally  implied.  Wliile  waiting 
to  pay  his  fare,  purchase  a  ticket,  or  comply  with  other 
regulations,  such  a  person  is  entitled  to  the  care  defined 
whether  he  has  been  accepted  or  not.  AYhile  the  relation 
may  thus  be  established,  knowledge  of  the  presence  of  the 
passenger  and  of  the  existence  of  the  relation,  may  be 
essential  to  charge  the  carrier  with  the  duty  to  do  par- 
ticular things  for  the  passenger.     To  illustrate,  knowl- 


20  American  Correspondence  School  of  Law 

edge  01  the  presence  of  any  jDassenger  is  not  essential  to 
tlie  keeping  of  tlie  premises  and  vehicles  properly  fitted 
up,  smce  that  duty  exists  to  all  who  may  properly  seek 
transportation,  but  a  particular  passenger  may  be  pecu- 
liarl}  situated  so  as  to  need  attention  called  for  by  that 
situation  alone,  such  as  protection  against  injurj^  or  in- 
sult from  others  than  the  carrier  or  his  employes.  The 
duty  to  do  such  things  may  depend  upon  the  question 
"whetiier  or  not  the  carrier  knew  or  ought  to  have  known 
of  the  necessity  for  them,  the  test  being  whether  or  not 
the  circumstances  called  for  them  to  be  done  to  constitute 
the  care  exacted. 

The  relation  may  exist  without  payment  of  fare.  Drov- 
ers and  others,  though  carried  upon  passes  called  free, 
but  issued  as  part  of  the  contract  for  transportation  of 
property,  are  entitled  to  the  protection  given  to  passen- 
gers. The  question  whether  or  not  express  messengers, 
postal  clerks,  and  the  like,  carried  by  special  arrange- 
ments differing  from  those  made  with  passengers  gen- 
erally, are  to  be  regarded  as  passengers  is  one  upon  which 
opinions  conflict.  A  person  carried  as  other  passengers, 
but  without  charge,  is,  by  the  weight  of  authority,  held 
to  be  a  passenger  in  the  absence  of  contract  providing 
differently. 

The  relation  of  carrier  and  passenger  may  be  defeated 
by  the  conduct  of  the  latter  of  various  kinds.  His  dis- 
orderly conduct,  drunkenness,  refusing  to  procure,  or  to 
exhibit,  a  ticket,  where  that  is  required  by  reasonable 
regulations  of  the  carrier,  may  authorize  the  carrier  to 
eject  him  from  his  premises  or  conveyances.  This  must  be 
done  in  a  prudent  and  careful  manner  with  no  unneces- 
sary force  01-  insulting  conduct  on  the  part  of  the  car- 
rier, or  his  em))loyes. 

The  passenger  must  conduct  himself  as  a  person  of 
ordijian^  prudence  aiid  submit  to  the  carrier's  reasonable 
rnh's  ;ind  i-cgulnlioiis  which  are  or  should  Ix'  kiiown  to 
liiiii.     If  lie  be  guilts    of  iioii:lig(!nce  in   fnilint''  to  do  anv 


The  Law  of  Common   Carriers  21 

of  these  things  which  proximately  contributes  to  his  in- 
juries the  carrier  is  not  liable. 

The  carrier  must  transport  the  passenger  with  safety 
and  dispatch  so  far  as  is  practicable  with  the  care  re- 
quired. The  carrier  and  his  employes  must  refrain  from 
rudeness  or  insulting  conduct  towards  the  passenger, 
the  undertaking  being,  not  only  for  transportation,  but 
for  good  treatment ;  and,  in  respect  of  this  duty,  the  car- 
rier is  responsible  for  misconduct  towards  the  passen- 
ger of  those  employed  in  the  management  of  the  con- 
veyances, stations,  waiting  rooms,  etc.  All  such  employes 
so  far  represent  the  employer  that  he  is  responsible  for 
the  disregard  by  any  of  them  of  his  duty  to  the  passen- 
ger. 

Another  duty  is  to  exercise  the  care  defined  to  protect 
the  passenger  from  assaults,  insults,  and  the  like,  from 
others.  Such  things,  however,  are  not  ordinarily  ex 
pected  to  happen,  and,  to  put  the  carrier  in  default  with 
respect  to  them,  he  must  have  had  the  opportunity  to 
know  of  or  to  anticipate  their  happening  in  time  to  have 
prevented  or  checked  them. 

The  relation  of  the  carrier  to  the  passenger  ends  when 
the  journey  is  ended  and  the  passenger  has  had  reason- 
able time  and  opportunity  to  safely  leave  the  conveyance 
and  the  station  or  other  place  of  discharge. 

As  the  liability  of  the  carrier  is  only  for  negligence,  or 
other  wrong  doing,  the  law  does  not  permit  him  to  con- 
tract against  it.  Some  authorities  have  held  that  he  may 
so  provide  against  the  negligence  of  his  employes  and 
against  anything  less  than  gross  negligence,  but  this  is 
not  the  prevailing  nor  the  sound  view.  The  authorities 
differ  upon  the  question  whether  or  not  the  carrier  can 
limit  its  liability  to  persons  carried  free. 

BAGGAGE. 

No  extended  treatment  of  this  subject  is  practicable 
within  the  limits  assigned  to  this  paper.  Only  what  are 
thought  to  be  the  leading  principles  will  be  stated. 


22  American   Cerrespondence  School  of  Law 

I.  The  obligation  to  carry  baggage  is  implied  from 
that  to  carry  its  owner.  It  exists  by  implication  only  with 
resjDect  to  that  which  the  law  determines  to  be  baggage, 
though  it  may  be  enlarged  by  acceptance  for  transporta- 
tion as  baggage  of  that  which  would  not  otherwise  be 
such. 

II.  For  baggage  taken  into  the  exclusive  custody  of 
the  carrier,  he  is  responsible  as  a  common  carrier  of 
goods. 

III.  As  to  baggage  retained  in  the  custody  of  the  pas- 
senger the  duty  of  the  carrier  is  one  of  diligence  to  pro- 
tect it  from  damage,  loss,  or  destruction  and  to  safely 
carry  and  deliver  it,  his  liability  not  being  that  of  an  in- 
surer. 

IV.  Since  the  carriage  of  baggage  is  incidental  to  the 
carriage  of  the  owner,  the  carrier  is  ordinarily  expected 
to  deliver  it  to  the  owner  at  the  end  of  his  journey  within 
a  reasonable  time  after  his  arrival,  and,  while  it  need 
not  necessarily  be  carried  on  the  train  or  other  convey- 
ance on  which  the  passenger  travels,  there  may  be  liabil- 
ity for  delay  in  delivering  such  as  would  not  arise  in  the 
ordinary  carriage  of  other  goods.  On  the  other  hand, 
if  the  passenger  do  not  apply  for  the  baggage  within  a 
reasonable  time  after  its  arrival  at  destination  (and 
usually  he  must  do  so  without  delay),  the  relation  of  car- 
rier is  converted  into  that  of  warehouseman  whose  duty 
is  to  store  and  keep  it  with  reasonable  care. 

V.  The  authorities  generally  admit  the  impracticabil- 
ity of  defining  the  term,  baggage,  so  as  to  include  all 
that  is  and  exclude  all  that  is  not  such.  The  definition 
and  illustrations  in  the  Cyclopedia  will  give  the  student 
a  fair  idea  of  the  import  of  the  term.  It  may  be  said, 
sliortly,  that,  as  the  carrier  does  not  ordinarily  know 
what  articles  the  passenger  has,  the  implied  obligation 
exists  with  reference  only  to  such  things  as  })assengei-s  in 
the  stailon  in  life  of  Ihe  one  in  question  might  reasonably 
be  expected  to  carry  for  ]iersonal  use  as  an  incident  of 
such  a  journey  as  that  undertaken. 


Cjaulord  i 

PAMPHLET  BINDER 

Syracuse,  N.  Y. 
Stockton,  Calif. 


■  UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  852  091     8 


